New FOIA Decisions,
October-December 2003

The following Freedom
of Information Act decisions were received by the Office of Information and
Privacy during the months of October through December 2003. OIP encourages all
agencies to make use of telefax transmission -- to (202) 514-1009 -- in forwarding
recent FOIA decisions for timely compilation in FOIA Post.

Appeals Courts

Decato v. Executive
Office for the United States Attorneys, No. 03-5044, 2003 WL 22433759 (D.C.
Cir. Oct. 24, 2003) (fee waiver: district court correctly ruled that agency
properly denied FOIA requester a fee waiver because he did not demonstrate any
public interest in the release of the information; indigence is not a proper
basis for waiving fees).

Gallace v. USDA,
No. 03-5141, 2003 U.S. App. LEXIS 20074 (D.C. Cir. Sept. 30, 2003) (per curiam)
(summary affirmance granted to the government in this FOIA action, finding that
the district court properly determined that the USDA's interpretation of the
FOIA request was reasonable and that its affidavit described a reasonable search;
court restricts appeal to exclude part of case that was not contested by plaintiff
in district court).

Hayden v. Dep't
of Justice, No. 03-5078, 2003 U.S. App. LEXIS 20399 (D.C. Cir. Oct. 6,
2003) (per curiam) (duty to search: district court properly found that adequate
search was conducted in response to FOIA request) (Exemption 7(C): protects
identity of third party; requester's personal stake in disclosure for purposes
of attacking his conviction does not outweigh the third party's privacy interests).

Hidalgo v. FBI,
344 F.3d 1256 (D.C. Cir. 2003) (vacates district court's ruling under Exemption
6 in this FOIA action because requester failed to exhaust his administrative
remedies; requester submitted an administrative appeal before the FBI acted
on his request, and he ignored the Justice Department's directive to appeal
again after the FBI completed its action; the "FBI never had a fair opportunity
to resolve [the issue] prior to being ushered into litigation"; case is remanded
with instructions to the district court to dismiss the Complaint).

Lakin Law Firm,
P.C. v. FTC, 352 F.3d 1122 (7th Cir. 2003) (Exemption 6: protects
the names and addresses of people who complained to the FTC about "cramming"
-- the practice of putting bogus charges on monthly credit card statements,
phone bills, or mortgage statements in the hope that the consumer will pay the
inflated amount; the personal privacy interests of individual consumers do not
disappear when they complain to the FTC; plaintiff has not identified a public
interest in disclosure).

Robert v. HHS,
78 F. App'x 146 (2d Cir. 2003) (district court properly dismissed this FOIA
action for lack of subject matter jurisdiction because HHS does not possess
any record responsive to the FOIA request).

Scherer v. United
States, 78 F. App'x 687 (10th Cir. 2003) (exhaustion: district court
properly found that requester did not exhaust his administrative remedies because
he did not appeal the denial of his initial FOIA request) (costs: district court
properly awarded costs to the defendant agency).

Schrecker v.
United States Dep't of Justice, 349 F.3d 657 (D.C. Cir. 2003) (Exemption
7(C): in this FOIA action where an historian seeks information about 2 individuals
who were investigated by the Justice Department during the McCarthy era, finds
that the FBI's affidavits demonstrate that it made a "reasonable effort" to
determine whether dozens of third parties were dead or alive for purposes of
this exemption; cautioning that a "bright-line set of steps for an agency to
take in this situation" would be "inappropriate," court approves agency's preferred
use of a 100-year rule; courts "should not focus primarily on the agency's rate
of success in unearthing the information sought," but "[r]ather, the proper
inquiry is whether the Government has made reasonable use of the information
readily available to it"; it was reasonable for the FBI to use the 100-year
rule where it had the individual's birthdate, to search the Social Security
Death Index only where it had the individual's social security number, and to
rely on institutional knowledge of the death of certain individuals only where
such knowledge existed; despite the passage of time, the strong privacy interests
at stake are not outweighed by the weak public interest in disclosure).

District
Courts

Cozzolino v.
IRS, No. 02-D-1833, 2003 U.S. Dist. LEXIS 18329 (D. Colo. May 14, 2003)
(magistrate's recommendation) (case or controversy: pro se plaintiff who filed
a "largely unintelligible" Complaint nevertheless demonstrated that a case or
controversy existed under the FOIA, because he submitted a FOIA request to the
Department of the Treasury and it responded to that request), subsequent
opinion, 2003 U.S. Dist. LEXIS 18328 (D. Colo. July 14, 2003) (magistrate's
recommendation) (case should be dismissed due to plaintiff's failure to prosecute),
adopted, 2003 U.S. Dist. LEXIS 16185 (D. Colo. Aug. 6, 2003).

Crain v. United
States Customs Serv., No. 02-0341 (D.D.C. Mar. 25, 2003) (exhaustion: plaintiff
who with respect to his first request has not stated his willingness to pay
any portion of the estimated fees associated with his FOIA request, has not
exhausted his administrative remedies; plaintiff makes an unsupported claim
that the fee amount is unreasonable) (fees (commercial requesters): plaintiff
is a commercial requester because at the time he made his FOIA request he sought
the information to assist him with pending claims with the Customs Service)
("reasonably segregable": with respect to the second request, even if the bulk
of the chapter of the United States Customs Special Agent Handbook concerning
the use of paid informants is exempt from disclosure under Exemptions 2 ("high"
2) and 7(E), defendant agency must supplement the record and show that all reasonably
segregable, nonexempt portions have been released).

Doe v. FBI,
218 F.R.D. 256 (D. Colo. 2003) (in this FOIA action, denies plaintiff's motion
to proceed under a pseudonym and under seal where plaintiff is a state court
judge who additionally is asserting a claim of "invasion of privacy").

Inst. for Wildlife
Prot. v. United States Fish & Wildlife Serv., 290 F. Supp. 2d 1226
(D. Or. 2003) (fee waiver: plaintiff, a noncommercial requester, is entitled
to a fee waiver for petitions submitted by environmental groups that rely on
2 recent technical and scientific analyses, because there is a substantial public
interest in agency activities relating to endangered species and the quality
of science used by the Fish and Wildlife Service, even though many of these
petitions were not approved by the agency; since 2001, plaintiff has been studying
the Service's interactions with the public and scientific organizations during
the listing process, and it is organized to disseminate the information in a
variety of ways to a varied audience).

Inst. for Wildlife
Prot. v. United States Fish & Wildlife Serv., No. 02-6178 (D. Or. Dec.
3, 2003) (attorney fees: in this FOIA litigation, where both parties agree that
plaintiff is eligible for and entitled to an award of attorney fees, grants
plaintiff $29,480.50 in attorney fees; $175 per hour is a reasonable hourly
rate for plaintiff's attorney, considering the number of years that he has been
practicing and the geographic area in which he practices; disallowing time spent
for work done at the administrative level before litigation began, finds that
168.46 hours were reasonably expended by plaintiff's attorney working on this
litigation itself; grants plaintiff $1361.89 in costs).

Jefferson v.
United States Dep't of Justice, No. 01-1418 (D.D.C. Nov. 14, 2003) (Exemption
7(C): grants government's and intervener's motions for reconsideration of the
court's March 31, 2003 opinion and order in this FOIA action where plaintiff
requested Department of Justice Office of the Inspector General (OIG) records
about a Justice Department attorney accused of official misconduct; records
were properly withheld under Exemption 7(C) because the attorney's position
-- GS-15 attorney-advisor rather than assistant director -- at the time of the
misconduct in question was not of such a high level that the public interest
in her performance of official government functions outweighs her personal privacy
interest in nondisclosure of information that could be of considerable sensitivity;
OIG properly refused to confirm or deny the existence of any other mention of
the attorney in its law enforcement records because she has a strong interest
"in not being associated unwarrantedly with alleged criminal activity") (attorney
fees: denies plaintiff's request for attorney fees because he has not substantially
prevailed in this litigation; denies the intervener's request for attorney fees
associated with the motion for reconsideration because her request lacks any
statutory or legal basis whatever).

Judicial Watch,
Inc. v. Rossotti, 285 F. Supp. 2d 17 (D.D.C. 2003) (duty to search: defendant
agency conducted a reasonable search in response to plaintiff's FOIA request
for records relating to its IRS audit and tax-exempt-status investigation) (failure
to meet time limits: when the IRS responded to plaintiff's FOIA request after
the 20-day time limit had expired, the issue of timeliness was mooted) (congressional
records: documents sent to the IRS for review and comment by the Joint Committee
on Taxation (JCT) and documents created by the IRS in response to a JCT inquiry
are congressional records and not "agency records" for purposes of the FOIA;
these records are under the control of the JCT and are not subject to the "free
disposition" of the IRS) (Exemption 7(C): categorically protects information
that would identify third parties who wrote to the IRS complaining about plaintiff's
tax-exempt status, absent compelling evidence that the IRS improperly targeted
plaintiff for audit and investigation; Treasury Department's Inspector General
must demonstrate why it could not redact some correspondence from third-party
complainants) (Exemption 3 [5 U.S.C. app. 4 § 207(a)]: the Ethics
in Government Act of 1978 protects Financial Disclosure Reports filed by federal
government employees; [26 U.S.C. § 6103(a),§ 6103(b)(2)]:
protect information that would identify third parties who wrote to the IRS complaining
about plaintiff's tax-exempt status, because it is "return information") (Exemption
7 (threshold): requirement met by records compiled by the IRS in the course
of an ongoing audit of plaintiff and an investigation of its tax-exempt status)
(Exemption 7(A): protects documents relating to the audit and civil investigation,
including information that would identify lower-level IRS employees, because
disclosure would interfere with the enforcement proceedings) (Exemption 5: the
deliberative process and the attorney-client privileges protect an internal
e-mail message seeking legal advice; an internal e-mail message regarding the
processing of a FOIA request is protected by the deliberative process privilege;
the attorney-client and attorney work-product privileges protect information
regarding the financial interests of prospective IRS employees) (Exemption 6:
protects information regarding the financial interests of prospective IRS employees
and a former IRS employee because the private harm outweighs the public interest
in disclosure).

LaCedra v. Executive
Office for United States Attorneys, No. 99-0273 (D.D.C. Nov. 5, 2003) (in
this FOIA action that was remanded on a search issue, where plaintiff subsequently
submitted a second unambiguous request for his entire criminal file, finds that
plaintiff's failure to pay fees assessed for the processing of that unambiguous
request deprives the court of subject matter jurisdiction).

Moye, O'Brien,
O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126
(M.D. Fla. Oct. 22, 2003) (Exemption 5: in this FOIA case where plaintiff submitted
21 FOIA requests for voluminous audit documents related to a government contract,
court rules that the deliberative process privilege does not protect records
relating to litigation before an arbitration panel where the defendant agency
is being represented by outside counsel; agency attorneys were neither involved
in the decisionmaking process nor direct recipients of the documents at issue;
the defendant agency has not shown that the documents at issue were part of
the deliberative process) (Exemption 2 "low": the defendant agency has not demonstrated
that fax transmittal documents, cover sheets, other records showing distribution,
and some database fields from a document control system are "predominantly internal";
even if some materials are internal, the identities of individuals inside and
outside the agency who reviewed materials and the date they received them may
be of public interest; exemption does not protect an invoice from an outside
consultant).

Piper v. United
States Dep't of Justice, 294 F. Supp. 2d 16 (D.D.C. 2003) (adequacy of
search: in this FOIA action where plaintiff seeks records about the kidnapping
of his mother in 1972, finds that plaintiff's request for an investigation of
record destruction by the FBI is outside of the scope of the FOIA, because the
FBI cannot produce records it does not possess; the court is satisfied that
the search that produced over 80,000 pages was adequate, and it also is satisfied
with the FBI's explanation that 28 missing serials do not exist) (Exemption
7 (threshold): requirement met by documents compiled in the course of the FBI's
investigation of the Piper kidnapping) (Exemption 7(C): rules that the FBI must
release a photograph of a criminal defendant's fingerprint and a memorandum
discussing that fingerprint, because the individual's "marginal" privacy interest
can be outweighed by the "public interest" found by the court in pursuing mere
allegations of FBI evidence tampering, which court held to fall "squarely within"
the FOIA's statutory purpose of shedding light on the government's performance
of its statutory duties; categorically protects the identities of FBI Special
Agents and support personnel, other federal law enforcement personnel, informants,
subjects of investigative interest, and third parties, even though all the individuals
involved have been exposed to media attention, because the public interest in
disclosure is "insubstantial") (Exemption 7(D): an implied promise of confidentiality
may be inferred for informants who spoke to the FBI, given the violent nature
of this kidnapping and because no one has been convicted of it yet; protects
information that would reveal the identities of informants with source symbol
numbers, because the FBI has demonstrated that those individuals were given
express promises of confidentiality; all reasonably segregable, nonexempt information
has been released) (Exemption 7(E): protects the results of all polygraph examinations
and details of sensitive electronic monitoring devices used over 30 years ago
during the FBI's investigation of the Piper kidnapping; while these investigative
techniques may be known to public generally, the court "is not inclined to aid
and abet society's criminal element" by disclosing the logistical considerations
involved and thereby reduce the techniques' effectiveness) (waiver of exemption
in litigation: FBI must locate and release in full 23 documents that it apparently
did not "justify" withholding in its Vaughn Index).

Potts v. United
States Dep't of the Treasury, No. 3:02-CV-1599, 2003 U.S. Dist. LEXIS 19894
(N.D. Tex. Oct. 8, 2003) (magistrate's recommendation) (recommends dismissal
of this FOIA action for lack of subject matter jurisdiction; plaintiff has not
exhausted his administrative remedies regarding the adequacy of the IRS's response
to his FOIA request, and his "tardiness" suit was rendered moot by that response
to his FOIA request), adopted, 2003 U.S. Dist. LEXIS 19898 (N.D. Tex.
Nov. 5, 2003).

Pub. Citizen,
Inc. v. Dep't of Educ., 292 F. Supp. 2d 1 (D.D.C. 2003) (fee waiver: denies
defendant agency's untimely request that plaintiff be required to pay the costs
associated with past and future searches; defendant agency did not respond to
plaintiff's request for a fee waiver, and it searched for documents responsive
to its FOIA request without seeking plaintiff's commitment to pay the fees incurred;
defendant agency had a statutory responsibility to respond to a fee waiver request
within 20 days and to notify plaintiff that its fees would exceed $50, the amount
plaintiff was willing to pay; defendant agency failed to notify plaintiff that
fees would exceed $250, as required by its particular regulation) (duty to search:
defendant agency did not conduct a reasonable search in response to plaintiff's
FOIA request for information about certain student loan borrowers; the database
that was searched could not be relied upon to contain the requested information,
and only a manual search of paper discharge files is most likely to turn up
the requested information; defendant agency must search the paper discharge
files within 90 days).

Wilkinson v.
Chao, 292 F. Supp. 2d 288 (D.N.H. 2003) (Exemption 5: the deliberative
process privilege does not protect an e-mail message and a memorandum concerning
the denial of plaintiff's request for overtime pay; records are not predecisional
because they were generated after the decision was made to deny overtime pay
and only for the purpose of preparing the writer of the memorandum to testify
in an arbitration proceeding; records must be released by December 5).

Other Courts

Cathedral Candle
Co. v. United States Int'l Trade Comm'n, 285 F. Supp. 2d 1371 (Ct. Int'l
Trade 2003) (subsections (a)(1) and (a)(2): in apparent dicta, reading both
subsections together, court states that defendant agency need not publish an
interpretive rule about the confidentiality of questionnaire responses in investigations
because it appears to be a clarification or explanation of the Tariff Act; "interpretations
of general applicability" must be published and "interpretations which have
been adopted by the agency" must be made available to the public upon request).
(posted 1/2/04)